Disciplinary proceedings against a notary for the transfer of public property to a monastery. The fair trial was not infringed

JUDGMENT

Peleki v. Greece 05.03.2020  (no.  69291/12)

see here 

SUMMARY

The case concerned disciplinary proceedings against the applicant, a notary by profession, after she
was instrumental in the conveyance of State property to a monastery.

The Court found that sufficiently thorough judicial scrutiny had been exercised by the Court of
Appeal, which had remedied the alleged flaws in the proceedings before the notaries’ disciplinary
board at the Athens Court of First Instance. The applicant had been afforded an adversarial
procedure and her right to be informed of the nature and cause of the accusations against her had
not been breached. She had been given adequate time and facilities for the preparation of her
defence. The fairness of the impugned proceedings could not therefore be called into question.

PROVISION

Article 6

PRINCIPAL FACTS

The applicant, Ms Ekaterini Peleki, is a Greek national who was born in 1965 and lives in Athens.
In May and December 2007, Ms Peleki, in her capacity as a notary, drafted two contracts between
the Hellenic Real Estate Company and Vatopedi Monastery, providing for the exchange of part of
Lake Vistonida, already owned by the monastery, for real estate belonging to the Greek State.

The contracts provided in particular that the monastery would acquire ownership of an area of 860.8
hectares located in Ouranoupoli in Halkidiki. In September 2008 newspaper articles suggested that
the exchange had been arranged in the monastery’s favour. Following an investigation, the Deputy
Public Prosecutor at the Athens Court of First Instance brought disciplinary proceedings against Ms
Peleki before the disciplinary board for notaries attached to the Athens Court of First Instance,
accusing her of breaching the Notarial Code. On 19 February 2009 the Disciplinary Board issued its
decision, concluding that the land in question could not be the subject of a conveyance and referring
the case to the Athens Court of Appeal, which, in a five-judge formation, was asked to rule on the
permanent disqualification of the applicant from practising as a notary.

In its judgment of 19 April 2011 the Court of Appeal found that the land in question was part of a
protected site, classified as a historical monument. It stated that common property could not be the
subject of any transaction or conveyance. The Court of Appeal found the applicant guilty of two
offences: the conveyance of land classified as a historical monument without, in addition, excluding
from the transaction two Byzantine historical monuments, which were also non-transferable; and
the establishment of a limited liability company. It ordered the applicant to be temporarily
disqualified from her duties for a period of four months for the first infringement and two months
for the second.

Ms Peleki appealed to the Court of Cassation, which set aside the judgment of the Court of Appeal in
so far as it concerned the creation of a limited liability company, but dismissed the remainder of the
appeal.

THE DECISION OF THE COURT…

Article 6 § 1

The Court acknowledged that Article 6 of the Convention was applicable under its civil head.
As regards the first-instance body, the Court first noted that in the minutes of the meeting of the
notaries’ disciplinary board there was no indication that the applicant’s lawyers had asked to plead
but had been denied this right. The Court pointed out that in any event, according to its settled
case-law, where an administrative authority did not meet all the requirements of Article 6 § 1 there
was no violation of the Convention if the proceedings were subsequently scrutinised by a judicial
organ with full jurisdiction.

The Court noted that the Court of Appeal had examined witnesses and had adjourned the hearing to
obtain further evidence. The applicant had been afforded the opportunity to present the arguments
she had deemed pertinent to her defence. Those arguments had been examined in detail by the
Court of Appeal, which had not been obliged to decline jurisdiction to respond to them or to verify
the findings of fact or law established by the disciplinary board. Moreover, the Court noted that the
applicant had not raised any complaint before it concerning the Court of Appeal proceedings.
The Court found that sufficiently thorough judicial scrutiny had been exercised by the Court of
Appeal, which had remedied the alleged flaws in the proceedings before the notaries’ disciplinary
board attached to the Athens Court of First Instance.

As regards the reclassification of the offences of which the applicant had been accused, the Court
noted that the domestic authorities had taken the view that the land in question was protected by
Law no. 3028/2002 for two reasons. Firstly, the entire area had been classified as a historic
monument by a ministerial decision of 1965 and, secondly, the area included two listed historic
monuments, classified as such by ministerial decisions of 1981 and 1984. The Court found that the
precise designation of the land in question was not clear and that the domestic authorities had used
different terminology at each stage of the proceedings. Furthermore, the Court of Appeal had adjourned its examination on the merits of the case in order to seek the opinion of the competent authority concerning the classification of the land.

In any event, the Court attached decisive importance to the proceedings before the Court of Appeal,
which had carried out a comprehensive examination of the applicant’s case, in terms of both
procedural and substantive law. After examining the file from the first-instance body, which,
moreover, had not issued a final decision, and the applicant’s submissions, the Court of Appeal
heard the observations of the defence lawyers at a public hearing. Assuming that the offence had
been reclassified, the applicant had been afforded an opportunity to present her defence in that
regard in the Court of Appeal. Moreover, no reclassification of the offences of which the applicant
was accused had taken place before the Court of Appeal or the Court of Cassation.

Lastly, with regard to the proceedings in the Court of Cassation, the Court noted that the applicant
had complained that the disciplinary board had not allowed her lawyers to plead after the
prosecutor’s submissions. In its judgment of 5 June 2012, the Court of Cassation had confined itself
to stating that the applicant had not raised the argument alleging that her lawyers’ request to speak
before the disciplinary board had been refused and that this argument should therefore be rejected.
In that connection, the Court observed that this conclusion was contradicted by the evidence of the
ample development of that plea shown in the record of the hearing leading to the Court of Appeal
judgment no. 8/2010.

Furthermore, the Court found that the same argument had been raised before it and that it had
already concluded that the Court of Appeal had exercised sufficiently thorough judicial scrutiny, thus
remedying the alleged flaws in the proceedings before the notaries’ disciplinary board, including the
alleged refusal of the chair of the board to allow the applicant’s lawyers to plead.

The Court thus found that there had been no violation of Article 6 § 1.


ECHRCaseLaw

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